e-flash 443
Abdullah v Westminster City Council
[2011] EWCA Civ 1171, October 19, 2011
Mummery, Lloyd and McFarlane LJJ
Where a tenancy of a matrimonial home is in the joint names of one spouse and a third party, the other spouse retains home rights in the property under s.30, Family Law Act 1996, so that she cannot be evicted from it without leave of the court if the third party serves notice to quit.Christopher Baker and Victoria Osler of Arden Chambers appeared for the appellant.
The appellant was an Iraqi national. Her husband fled Iraq and came to the UK, leaving the appellant and their son behind. In 2002, the respondent authority granted the husband a joint tenancy of a house with the appellant’s mother. In March 2009, the appellant arrived in the UK with her son and they went to live in the house. Her relationship with both her husband and her mother deteriorated and, in July 2009, the mother asked the appellant to leave, although she did not specify by when. In June 2010, the mother again asked her to leave. The husband never did so. The appellant applied to the authority for assistance as a homeless person under Pt 7, Housing Act 1996, asserting that she had no accommodation which it was reasonable for her to continue to occupy.
The authority decided that she was neither homeless nor threatened with homelessness because, inter alia, she had home rights in the house under s.30, Family Law Act 1996, and therefore could not be excluded from it. That decision was upheld on review.
On appeal to the county court, it was argued that the reviewing officer had not determined whether one joint tenant could unilaterally terminate a licence granted by both joint tenants and that a finding on that issue was central to the application of the 1996 Act because the appellant only had home rights against her husband, who had not terminated her licence.
The recorder held that the appellant’s mother could not unilaterally terminate her licence because the appellant retained home rights in respect of the house and could not be evicted.
Mrs Abdullah appealed to the Court of Appeal on grounds that:
(i) the recorder usurped the fact-finding role of the authority by making findings of fact that were not contained in the review decision to justify dismissing the appeal;
(ii) the mother (as one joint tenant) was entitled unilaterally to determine the licence; and,
(iii) the authority had at never considered whether it was reasonable for the appellant to continue to occupy the house.
The Court of Appeal dismissed the appeal. The reviewing officer’s decision had been based on her conclusion that the appellant was entitled to remain living in the house and to exercise her home rights under s.30, Family Law Act 1996. She had given proper consideration to whether it was reasonable for the appellant to remain living in the house. There was therefore no point of law arising from the review decision. The fact that the mother was a joint tenant of the house could not prevent the appellant from exercising her home rights; those rights apply where one spouse has a beneficial interest in a property and the other does not and it would be contrary to the intention of the Family Law Act 1996 if the appellant were to be denied the protection of the Act simply because her husband had taken the tenancy of the home jointly with another person. The recorder could not be criticised for making findings of fact: the primary facts were not in dispute and she had been entitled and bound to consider the legal significance of those facts in the context of the 1996 Act.
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